Litigation: The EEOC’s fiscal year-end rush to the ‘Red Zone’

The Equal Employment Opportunity Commission’s (EEOC) fiscal year ended on Sept. 30, 2013, and the preliminary score cards are in. An analysis of the EEOC’s year-end filings suggest that the EEOC revved its engine in August and September of FY 2013 and filed 48 of its 134 lawsuits in the last two months of the year. The EEOC traditionally launches large salvos of federal court complaints across the country in the waning weeks of its fiscal year. The EEOC’s dash to the finish line has become common practice and is often referred to as the “Red Zone.” The sheer number of EEOC cases filed in the Red Zone is always telling, but the statistics only give part of the story.

A look behind the numbers provides additional insight into the EEOC’s litigation agenda and a warning of things to come.

The eleventh hour push

Entering FY 2013, the EEOC signaled its intent to spread out its court filings throughout the year, rather than rush during the Red Zone. The statistics show otherwise. The chart below captures the month-to-month filing statistics for FY 2013.

EEOC cases filed by month - FY 2013

Indeed, the statistics show that the year-end rush is alive and well. Clearly, the EEOC was up against the buzzer to file claims before the clock ran out. During the last week of FY 2013, the EEOC filed over two-dozen lawsuits. Eleven of these filings occurred on the last day of the fiscal year. It is possible that September was an extra busy month for the EEOC in light of the looming government shutdown. The pie chart below provides a snapshot of the cases filed in the last week of the fiscal year.

EEOC cases filed in the last week of FY 2013

Here is the kicker: 14 of the cases filed during the last week of the EEOC’s fiscal year were cases alleging disability discrimination. Compared to the types of claims the EEOC filed throughout the entire fiscal year, ADA claims covered the biggest percentage of the EEOC’s yearly filing activity. The statistics make clear that disability discrimination was the front and center of the EEOC’s FY 2013 agenda. Interesting enough, the pursuit of ADA lawsuits is not listed in the EEOC’s Strategic Enforcement Plan as part of its “big six” national priorities.

Insight for employers

The last few weeks of the EEOC’s fiscal year is a period of both opportunity and frustration for employers. The government operates under a different set of rules and motivations than private litigants, and that reality is certainly reflected in the Red Zone. Given the EEOC’s focus on disability discrimination, there is no better time than now to stay off the EEOC’s radar by making sure employment practices do not adversely impact disabled employees. Additionally, employers are well suited to train managers and supervisors about legal obligations relating to treatment of disabled workers.

As a final note, during the government shutdown, non-essential EEOC employees were furloughed. As such, the EEOC was instructed not to investigate or file any charges. Employers beware — it is possible that there are a back-stock of cases, which the EEOC will file now that the government shutdown has ended. Understanding what motivates the EEOC, particularly in this sensitive time frame, will help employers deal with the agency and will hopefully lead to achieving the joint goal of a discrimination and harassment free workplace.

Gerald L. Maatman, Jr.

Gerald L. Maatman, Jr. is a partner in the Chicago and New York offices of Seyfarth Shaw LLP and is the co-chair of the Firm’s...